The California Department of Toxic Substances Control (“DTSC”) recently issued its ninth draft of the Green Chemistry Initiative regulations (“Regulations”) with the final rules expected later this year. The following are six key changes set forth in the ninth draft: (1) companies are only required to make changes to ingredients included on DTSC’s list of chemicals of concern (“COC”); (2) companies are no longer required to hire a certified assessor to perform an Alternative Analysis (“AA”) but may conduct the AA themselves, while also undergoing a public notice and comment period; (3) companies from the same industry are allowed to form a nonprofit group to fund disposal of certain products as part of the end-of-life management program; (4) companies are allowed to assert “trade secret” protection over information required to be submitted; (5) the regulations will distinguish between companies that make products and those that assemble products, rather than define them all as manufacturers; and (6) an exemption is provided for products regulated by other laws that provide public health and environmental protections that are equivalent to the Green Chemistry Initiative or stricter.

With respect to the second key change, under the Regulations, Priority Products must undergo an AA, or an evaluation and comparison of the product to product alternatives. Alternatives may include removing the COC from the product, replacing the COC with a substitute chemical, reformulating/redesigning the product to reduce or eliminate the COC, or using another material to restrict exposure to the COC. Earlier versions of the Regulations allowed DTSC to make changes to any ingredients in their products instead of limiting DTSC’s authority to addressing ingredients on DTSC’s list of COCs. The prior version of the Regulations also required that AAs be performed by certified assessors. Under the latest revised version, while affected entities will be able to conduct their own AAs, those AAs must undergo a public notice and comment period of 45 days, with public comments to be sent directly to the company as well as DTSC. In the Final AA Report, the company must summarize and address the public comments received.

With respect to the third key change, manufacturers of a Priority Product or a selected alternative that must be managed as a hazardous waste in California at the end of its useful life are required to establish “end-of-life” management programs for such products. The new revisions allow manufacturers to join together to form and fund a non-profit third-party stewardship organization to fulfill the end-of-life management program requirements. Under previous versions, each manufacturer was required to individually fund the program within one year of issuance of a notice of compliance for the Final AA Report.

With respect to the fourth key change, the newly revised Regulations allow companies to assert “trade secret” protection over information required to be submitted. In doing so, the company must submit a complete copy of the documentation, including the information for which trade secret protection is claimed, and a redacted copy of that same documentation. The revised Regulations, however, provides an exception to the submission of the complete copy where federal law or a nondisclosure agreement expressly prohibits the release of the information. Additionally, while the regulations generally prohibit trade secret protection for hazard trait submissions, the new draft allows for companies to at least temporarily mask the precise identity of a chemical in the hazard trait submission if the chemical is an alternative considered in the AA and a patent application for the chemical or its use is pending.

With respect to the fifth key change, the Regulations now define manufacturer as “any person who manufactures a product that is subject to the requirements of this chapter, or any person that controls the manufacturing process for, or has the capacity to specify the use of chemicals in, such a product.” The definition of manufacture has also been revised and now states that “manufacture does not include acts that meet the definition of ‘assemble.’” Assemble is defined as to “fit, join, put, or otherwise bring together components to create a consumer product.” If the manufacturer of a Priority Product component does not comply with applicable requirements, assemblers who use that component have the same option as retailers. The assembler can comply with the requirement themselves or cease ordering the Priority Product component.

With respect to the sixth key change, an upfront exemption has been created for products regulated by other laws that provide public health and environmental protections that are equivalent to the Green Chemistry Initiative or stricter.

While it appears that the ninth draft of the regulations provides some relief to the regulatory burden imposed on companies who use targeted materials, with public comments recently closed, it will shortly be seen how the business and environmental communities receive these changes. The answer may come in the form of final rules, as this draft of the regulations is believed to be DTSC’s last version prior to its issuance of the final rules. DTSC has indicated that it will identify the first five Priority Product categories to which to apply these regulations, this year, with the likely categories being articles for personal care and for children/infants.

The State Water Resources Control Board (the Board) has released its draft NPDES Industrial General Permit (draft Industrial General Permit). Under the federal Clean Water Act (CWA), discharges to waters of the United States are prohibited unless in compliance with a national pollutant discharge elimination system (NPDES) permit. CWA § 301(a). Under the California Water Code, the Board is charged with protecting beneficial uses of California’s waters. U.S. EPA has authorized the Board to implement the NPDES program for discharges regulated under the federal CWA.

The draft Industrial General Permit applies to most industrial facilities, including manufacturing, oil and gas, mining, hazardous waste treatment/storage/disposal, landfills, recycling, steam electric power, transportation, and sewage/wastewater treatment. The Board asked a blue ribbon panel of experts to address whether it is technically feasible to establish numeric effluent limitations or some other quantifiable limit for inclusion in general storm water permits. The draft Industrial General Permit reflects the findings of the panel, and incorporates elements of the U.S. EPA’s Multi-Sector General Permit (MSGP).

In United States v. U.S. Magnesium, No. 08-4185, the 10th Circuit United States Court of Appeals addressed whether failure to comply with the notice and comment procedures of the Administrative Procedure Act (“APA”) precluded the United States Environmental Protection Agency (“EPA”) from changing its prior interpretation of an ambiguous 1991 regulation.

The lawsuit underlying the appeal concerned five waste byproducts (“the five Complaint wastes”) generated by U.S. Magnesium through its magnesium production process. The United States argued that U.S. Magnesium’s handling of these wastes did not comply with Subtitle C of the Resource Conservation and Recovery Act of 1976 (“RCRA”). U.S. Magnesium responded that the EPA previously exempted the five wastes from Subtitle C’s requirements in a prior interpretation of its own regulation, and that the EPA was precluded from changing that interpretation without first complying with the notice and comment procedures of the Administrative Procedure Act (“APA”). The district court agreed with U.S. Magnesium and granted partial summary judgment in its favor.

On September 2, 2009, the California State Water Resources Control Board Division of Water Quality adopted Order 2009-0009-DWQ, the National Pollutant Discharge Elimination System (NPDES) General Permit For Storm Water Discharges Associated With Construction and Land Disturbance Activities (General Permit). All discharges of storm water and non-storm water from construction sites are prohibited except those specifically authorized by the General Permit or another National Pollutant Discharge Elimination System (NPDES) permit.

The General Permit applies to a broad range of construction or demolition activities including, but not limited to, clearing, grading, grubbing, excavation, and any other activity that results in a land disturbance of equal to or greater than one acre. It also applies to projects less than one acre if the construction activity is part of a larger common plan, and other construction activities related to particular projects, such as those associated with linear underground/overhead utility lines, oil and gas, agriculture that is considered “industrial,” and others.

The U.S. Environmental Protection Agency (EPA) last week announced a final rule to address greenhouse gas (GHG) emissions from large stationary sources such as power plants and oil refineries. EPA’s phased-in approach will shield relatively smaller sources of GHGs from Clean Air Act (CAA) permitting requirements.

“After extensive study, debate and hundreds of thousands of public comments, EPA has set common-sense thresholds for greenhouse gases that will spark clean technology innovation and protect small businesses and farms,” EPA Administrator Lisa Jackson said.

On May 4, 2010, the State Water Resources Control Board (“Board”) approved the Water Quality Control Policy (“Policy”) to implement a provision of the federal Clean Water Act aimed at coastal and estuarine power plants’ cooling water intakes. The Policy implements Clean Water Act § 316(b). Section 316(b) requires cooling water intake structures to have the best technology available (BTA) to minimize adverse environmental impacts. According to the Board, California’s coastal and estuarine power plants using the once through cooling approach draw 15 billion gallons of water per day. The Board claims once through cooling annually kills 2.6 million fish and over 19 billion fish larvae. The Board adopted the Policy “to minimize” these biological impacts.

New federal legislation aimed at protecting the country’s wildlife corridors was introduced last week by U.S. Representatives Rush Hold (NJ-12) and Jared Polis (CO-2). Wildlife corridors, expanses of land in which animals can freely move about and propagate, are under constant threat from urban sprawl and climate change.

The Wildlife Corridors Conservation Act would create a fund for the management and protection of essential wildlife corridors. It would also create an information program within the Fish and Wildlife Service to collect information about wildlife movement paths to disseminate to state and federal agencies. The bill would also require the Department of Agriculture, Department of the Interior and the Department of Transportation to consider the preservation of migration paths in their management plans.